Change for the worse?

When Valuing People was published in 2001 it was hailed as a
breakthrough for the rights of people with learning difficulties.
The values underpinning the government white paper – civil rights,
independence, choice and inclusion – were particularly pertinent to
housing.

But, according to some, these principles could be compromised by
misunderstandings over the issues of registration, personal care
and capacity. The confusion started when hundreds of residential
homes were permitted to “de-register” under the Registered Homes
Act 1984 by their local authority registration and inspection units
to provide other forms of accommodation.

Among charities de-registering homes was Alternative Futures, a
north west England provider which runs residential homes for people
with learning difficulties. In May 2001, it consulted on plans to
to de-register its homes and establish supported tenancies in their
place, allowing residents greater independence and access to
housing benefit.

Three local inspection units consented to the change for the homes
under their jurisdiction, but three other applications were
refused. Days later the National Care Standards Commission
superseded local inspection units, and it emerged that voluntary
“de-registration” had never been legal under the Registered Homes
Act.

The NCSC told Alternative Futures that a registered home owner
could now apply for their registration to be cancelled under the
Care Standards Act 2000, which had replaced the Registered Homes
Act. The charity applied, but was refused. This decision was taken,
says the NCSC, because it believed that “accommodation and nursing
or personal care” were being provided and the service was
continuing to operate as a care home.

Alternative Futures is appealing to the independent review body,
the Care Standards Tribunal against the decision. But the charity’s
managing director, Steve Cullen, is worried about the effect on
users if the appeal fails.

Supported tenancies had already been set up in the three refused
areas because they were expecting the go-ahead. So users who have
already been tenants for a year face seeing their home return to a
residential care setting, Cullen says.

Heather Wing, NCSC director of adult services, says: “We inherited
the situation, we didn’t make it. Just because someone puts in an
application, it doesn’t mean we will grant it. Our main purpose is
to ensure people are protected and not exploited.

“Since April, the NCSC has agreed to many registered persons’
applications for cancellation of their registration to become
involved in offering supported accommodation [including several
from Alternative Futures] and this emphasises that we are fully
backing the supported accommodation policy. There is anecdotal
evidence that many of the 897 voluntary cancellations in adult
services have been those moving into supporting people
arrangements.”

The NCSC appreciates that some residential home owners could be
tempted to apply to cancel their registration to avoid complying
with prescriptive national minimum standards brought in under the
Care Standards Act – although the government has just backed down
on some.

But what constitutes residential care? The Care Standards Act
specifies it as an “establishment” providing accommodation together
with nursing or personal care for certain categories of
people.

And what is personal care? According to government guidance, it
must include assistance with bodily functions such as feeding and
bathing if required. So, if the home and care come as one package
and the individual has no choice about from whom they receive their
care, it is more likely to be considered residential care, says
Gill Parsons, project officer for the regulation of care services
award at the University of Wales Institute Cardiff. “The personal
care definition is somewhat vague and the concept has been fraught
for years,” she says.

The NCSC must decide whether there are legitimate grounds for a
home owner cancelling their registration to move into another form
of housing provision which may be less strictly regulated than
residential care. “Our primary duty is to protect people through
regulation,” says Wing.

In the case of supported living schemes – often a preferred choice
for people with learning difficulties – they need only register
with the NCSC as a domiciliary care agency if they are providing
personal care to the tenant. If the supported living scheme brings
in care from an outside organisation, it is this body that must
register as a domiciliary care agency. But neither the
accommodation nor the tenancies are regulated because they are
private residencies.

And herein lies a further confusion around registration: what is
supported living? Although the term is used several times in
Valuing People, there is still uncertainty about what it means. In
a paper on implementing the white paper at a local level, the late
Ken Simons at the Norah Fry Research Centre said: “In at least one
instance it is used as a synonym for all forms of supported housing
including residential care.”

He added that it should mean enabling people with learning
difficulties to live in their own homes through opening up a range
of housing options including outright or shared ownership. He cited
supported tenancies as an example. Even Wing admits it is a “very
complex area”.

Money is another key factor. Care home residents are not entitled
to housing benefit and have little disposable income. But a tenant
in supported housing is entitled to income support and can claim
housing benefit to help pay their rent.

In the run-up to Supporting People, the government’s programme of
transferring responsibility for housing-related support for
vulnerable groups to local authorities, eligible users are entitled
to transitional housing benefit. This is paid by the housing
benefit agency to safeguard providers who are supporting vulnerable
people in the community until the new system starts in April. It
allowed a year for each local authority to establish exactly what
housing-related support costs there are in local services to help
estimate the total future pot of money that each council would need
for its final Supporting People grant.

A government consultation paper on the issue says: “Government
policy would support changes to care homes and their replacement
with unregistered provision in cases where assessments/care plans
of the individuals in the scheme lead to changes that might promote
greater independence.”1

But it adds: “Government policy would not support inappropriate
changes to care homes which seek primarily to secure funding
through transitional housing benefit and Supporting People. Such
changes risk removing necessary protection from vulnerable people
and may be unlawful. They also risk future disruption to funding if
the NCSC later decides that registration as a care home is
required.”

After April, the Supporting People budget closes. Any home owner
that has not had the cancellation of their registration agreed by
then will have little chance of accessing Supporting People money,
and the impact could be to reduce users’ choice.

With learning difficulties ranging from mild to severe, mental
capacity is another consideration for the NCSC in granting a
supported tenancy. Where it is clear that users lack capacity to
understand a supported tenancy, the NCSC will ask the service
provider to show that advocates had been involved in preparing
users for change and establishing that this is what they
want.

Rob Greig, director of implementation for Valuing People, says:
“There is a greater need for clarity about capacity and we are
working with the NCSC to achieve this. People must have choice but
they have to be able to participate in that choice. The issue is
who takes the decision about whether someone has the capacity to
consent to a tenancy agreement. Is the NCSC appropriate? It would
seem that care managers and others who know the person well and
worked with them over a period of time are more appropriate.

“A tenancy agreement means taking on obligations. There needs to be
creativity in understanding the different ways that people can give
consent.”

Parsons agrees: “A lot of these issues are clouded by whether
people can express their rights. If you have properly funded and
resourced advocacy services you can go some way towards ensuring
that people’s rights can be expressed and verified.”

Those in favour of supported tenancies say they give people with
learning difficulties ownership and security, allowing them the
independence that they cannot have in a residential home.

Parsons adds: “There will be statements that users will be better
off because of a higher level of disposable income and I accept
that is an argument, but the rationale for making these decisions
needs to be carefully thought out.

“There’s an important place for supported accommodation, but what
concerns me is where it’s in order to avoid the constraints of the
Care Standards Act. I’m not saying they are all doing this, but a
lot of people are perceiving it in that way.”

In Scotland the Regulation of Care (Scotland) Act 2001 and
Supporting People introduced a conflict of definition over what
constitutes a personal care home and what constitutes supported
accommodation, says Austen Smyth, lead officer of Supporting People
at Fife Council.

The trend across Scotland has been to develop unregistered
council-run or commissioned group homes allowing people with
learning difficulties to have a tenancy. The concern was that the
Scottish Commission for the Regulation of Care would decide that
group homes were residential homes.

Smyth says: “We argued strongly that they are their ordinary
homes and that these people with learning difficulties are able to
access their income support and other benefits and have a good
inclusive lifestyle as a result of that.”

Ministers have now accepted that the homes are a form of
supported living and it has been decided that the group homes can
remain unregistered.

The commission will be able to inspect them as housing support
services or care at home but without cutting off tenants’ funding
stream or confining them to residential care, says Smyth.

Additionally, the commission has agreed to process all requests
to cancel registration from the public, voluntary and private
sector. This is intended to ensure that decisions are made in time
to allow services that are properly defined as housing support
services rather than a care home to be counted in the resources
required for the Supporting People fund.

Smyth says: “We feel we have won an important victory in
Scotland.”

Care standards

The National Care Standards Commission was introduced by the
Care Standards Act 2000 and has responsibility for regulation of
residential care, nursing homes, adult placement and domiciliary
care. Equivalent bodies have also been set up in Wales (the Care
Standards Inspectorate for Wales) and Scotland (the Scottish
Commission for the Regulation of Care).

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